Opinion
No. 337820
04-12-2018
JANN QWENDELL JOHNSON, Plaintiff-Appellant, v. RICHARD CHARLES LUCAS, Defendant, and STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee.
UNPUBLISHED Oakland Circuit Court
LC No. 2016-151740-NI Before: SAWYER, P.J., and HOEKSTRA and MURRAY, JJ. PER CURIAM.
Plaintiff appeals as of right the trial court's order dismissing her case with prejudice for failing to attend a settlement conference. Because the trial court failed to appropriately consider whether dismissal of plaintiff's case was just and proper under the circumstances in this case, we reverse the trial court's order dismissing the case and remand for reconsideration on the record.
The present case is an action for no-fault benefits arising out of a car accident that occurred in March 2015. Pursuant to a scheduling order entered in September 2016, the trial court ordered the parties, trial counsel, and adjusters to attend a settlement conference on March 2, 2017. Although plaintiff's attorney attended the settlement conference, plaintiff failed to appear. The settlement conference proceedings were held off the record, so it is not entirely clear what transpired. However, the trial court entered a written order dismissing the case with prejudice due to plaintiff's "failure to appear at the above-referenced Settlement Conference." Plaintiff filed a motion for reconsideration, which the trial court denied. Plaintiff now appeals as of right.
On appeal, plaintiff contends that the trial court should not have dismissed her case as a sanction for her failure to attend the scheduled settlement conference. We agree.
We review for an abuse of discretion a trial court's dismissal of a case as a sanction for a party's failure to attend a settlement conference. Vicencio v Ramirez, 211 Mich App 501, 506; 536 NW2d 280 (1995). A trial court abuses its discretion when it chooses an outcome outside the range of reasonable and principled outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006). "The proper interpretation and application of a court rule is a question of law, which we review de novo." Henry v Dow Chem Co, 484 Mich 483, 495; 772 NW2d 301 (2009).
"[T]rial courts possess the inherent authority to sanction litigants and their counsel, including the power to dismiss an action." Maldonado, 476 Mich at 376. In addition to this inherent power, trial courts are empowered with the authority to sanction by statute and court rule. Id. Relevant to this case, a trial court may direct parties to attend a settlement conference. MCR 2.401(F)(1); Schell v Baker Furniture Co, 461 Mich 502, 510; 607 NW2d 358 (2000). And, under MCR 2.401(G)(1), a party's failure to attend a scheduled conference may constitute grounds for a dismissal pursuant to MCR 2.504(B). MCR 2.504(B)(1) provides that "[i]f a party fails to comply with these rules or a court order, upon motion by an opposing party, or sua sponte, the court may enter a default against the noncomplying party or a dismissal of the noncomplying party's action or claims." However, as set forth in MCR 2.401(G)(2):
The court shall excuse a failure to attend a conference or to participate as directed by the court, and shall enter a just order other than one of default or dismissal, if the court finds that
(a) entry of an order of default or dismissal would cause manifest injustice; or
(b) the failure was not due to the culpable negligence of the party or the party's attorney.
Although a trial court has discretion to sanction a party by dismissing her claims, "[o]ur legal system favors disposition of litigation on the merits," Vicencio, 211 Mich App at 507, and a "[d]ismissal is a drastic step that should be taken cautiously," id. at 506. "As a result, a trial judge must follow the procedures set forth in our court rules before ordering an involuntary dismissal." Donkers v Kovach, 277 Mich App 366, 369; 745 NW2d 154 (2007). Further, "[b]efore imposing dismissal as a sanction, the trial court must carefully evaluate all available options on the record and conclude that dismissal is just and proper." VandenBerg v VandenBerg, 231 Mich App 497, 502; 586 NW2d 570 (1998). To determine whether dismissal is just and proper, the trial court should consider the following nonexhaustive list of factors:
(1) whether the violation was wilful or accidental; (2) the party's history of refusing to comply with previous court orders; (3) the prejudice to the opposing party; (4) whether there exists a history of deliberate delay; (5) the degree of compliance with other parts of the court's orders; (6) attempts to cure the defect; and (7) whether a lesser sanction would better serve the interests of justice. [Vicencio, 211 Mich App at 507.]"The record should reflect that the trial court gave careful consideration to the factors involved and considered all its options in determining what sanction was just and proper in the context of the case before it." Kalamazoo Oil Co v Boerman, 242 Mich App 75, 86; 618 NW2d 66 (2000) (quotation marks and citation omitted). A trial court's failure to evaluate other available options on the record before dismissing plaintiff's case is an abuse of discretion. Vicencio, 211 Mich App at 506-507.
In this case, the order dismissing the case states that the "case shall be dismissed with prejudice for [plaintiff's] failure to appear at the [March 2, 2017] Settlement Conference." Likewise, the order denying plaintiff's motion for reconsideration merely states that plaintiff failed to demonstrate a palpable error. The record contains no indication that the trial court evaluated possible options other than dismissal and the trial court failed to consider the factors set forth in Vicencio. Further, MCR 2.401(G)(2) mandates that the trial court excuse a plaintiff's failure to attend a settlement conference if dismissal would cause manifest injustice or plaintiff's absence was not due to culpable negligence; but, there is no indication that the trial court considered MCR 2.401(G)(2) before dismissing plaintiff's case. Because the trial court failed to follow the appropriate procedures on the record before dismissing plaintiff's case with prejudice, we reverse and remand for reconsideration of what sanction, if any, is just and proper in the circumstances of this case. See Duray Dev, LLC v Perrin, 288 Mich App 143, 165-166; 792 NW2d 749 (2010); Houston v Southwest Detroit Hosp, 166 Mich App 623, 631; 420 NW2d 835 (1987).
On appeal, defendant does not appear to dispute that the trial court failed to follow the appropriate procedures. Instead, defendant argues that we should not review plaintiff's arguments because there is nothing in the lower court record to establish that plaintiff asked the trial court to go on the record and consider the Vicencio factors at the settlement conference. We find defendant's argument unpersuasive. Plaintiff is appealing an adverse decision and she is entitled to have this Court address the issue on the basis of the record as it exists. See Golden v Baghdoian, 222 Mich App 220, 222 n 2; 564 NW2d 505 (1997). While the lower court record is sparse, what is before us is a draconian dismissal of plaintiff's case for failing to attend a settlement conference without any explanation on the record that would warrant this harsh sanction for an isolated misdeed. In these circumstances, when the only record evidence demonstrates that the trial court failed to follow mandated procedures before dismissing plaintiff's case, we will not deny plaintiff relief simply because there is no evidence that she objected during proceedings which were improperly conducted off the record. In other words, even if we treated plaintiff's argument as unpreserved, we are persuaded that she has demonstrated plain error, Elahham v Al-Jabban, 319 Mich App 112, 121; 899 NW2d 768 (2017), and that the appropriate course of action is a remand for a proper consideration on the record of what sanction, if any, is just and proper in light of plaintiff's failure to attend the settlement conference. See Houston v Southwest Detroit Hosp, 166 Mich App 623, 631; 420 NW2d 835 (1987). --------
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ David H. Sawyer
/s/ Joel P. Hoekstra
/s/ Christopher M. Murray